Libby Trial: Final Arguments about Scooter, Cheney & Truth

By

February 21, 2007

A cloud unfairly placed over Dick Cheney, or Libby and Cheney placing a cloud over the White House.

As the prosecution and the defense teams in the perjury trial of I. Lewis “Scooter” Libby presented closing arguments on Tuesday, each side tried to encapsulate its case–and portrayed distinctly opposing views of reality.

“This case was about lying,” prosecutor Peter Zeidenberg said at the start of the government’s summation. He maintained that during the CIA leak investigation Libby, the former chief of staff for Vice President Cheney, lied to the FBI and grand jury about how he had learned that Valerie Wilson was a CIA employee, whom he had talked to about her, and what he had told others about former Ambassador Joseph Wilson’s wife. Referring to the opening argument of lead defense attorney Ted Wells, Zeidenberg pointed out that Team Libby had contended their client was an innocent man who had been turned into a sacrificial lamb by a White House desperate to protect Karl Rove, the administration’s uber-strategist. But, he continued, Libby’s lawyers introduced no evidence to support that flashy charge. “Unfulfilled promises from counsel,” he added, “do not constitute evidence.”

Zeidenberg asked the jurors to recall that nine witnesses had each said they had spoken to Libby about Wilson’s wife and her CIA connection In June and July 2003. They contradicted the tale that Libby had told the FBI and the grand jury. In his FBI interviews and grand jury appearances, Libby had conceded that around June 11, 2003, Cheney told him that Wilson’s wife worked at the CIA’s Counterproliferation Division (which is part of clandestine operations directorate). But he claimed that he had been struck by total amnesia regarding this critical fact in the following weeks and learned about Valerie Wilson’s CIA employment “anew” on July 11–three days before the leak appeared in a Robert Novak column–when NBC News’ Tim Russert told him that “all the reporters” knew Wilson’s wife was CIA. In Libby’s account, when he had talked to reporters about Wilson’s wife prior to the leak he had merely been passing along gossip (not official and classified information) he had picked up from Russert. (Russert testified he had said no such thing to Libby.)

This was nothing but a cover story, Zeidenberg charged: when Libby was questioned by the FBI in October 2003, he had reason to fear being caught up in the criminal investigation and to worry about losing his job. The prosecutor reviewed for the jurors the conversations Libby had during the relevant time period. Undersecretary of State Marc Grossman, senior CIA officer Robert Grenier, CIA briefer Craig Schmall, Cheney press spokesperson Cathie Martin–each testified he or she had talked to Libby about Wilson’s wife in mid-June, within days of when Cheney had told Libby about Wilson’s wife. Zeidenberg reminded the jurors that former White House press secretary Ari Fleischer testified Libby told him about Wilson’s wife on July 7, 2003, and that Matt Cooper, formerly of Time, and Judith Miller, formerly of The New York Times, testified that Libby had spoken to them about Wilson’s wife and her CIA employment prior to the leak.

3

4

5

The defense had taken shots at several of the prosecution witnesses, and Zeidenberg did his best to bolster their credibility. None, he argued, had reason to lie, and their accounts all pointed in the same direction. Could they all be lying or misremembering in a similar fashion? When Russert had been on the witness stand, Wells had accused him and NBC News of harboring a bias against Libby and the office of the vice president. Then why, Zeidenberg asked the jurors, did Cathie Martin testify that she had suggested that Cheney appear on Russert’s Meet the Press in July 2003 to combat charges the White House had misrepresented the prewar intelligence?

Zeidenberg took on the defense’s claim that Libby had been too busy with national security matters in 2003 and 2004 to remember accurately what he had known and said about Valerie Wilson. Listen to this, Zeidenberg told the jurors, and he played a portion of Libby’s March 2004 grand jury testimony during which Libby was able to recall in detail a conversation he had with Rove on July 11, 2003. In that discussion, according to Libby, Rove told him that Novak had informed Rove that Wilson’s wife worked at the CIA and that he (Novak) would be publishing a column about Wilson. Libby also told the grand jury that during this conversation he said to Rove that he had just heard from Russert about Wilson’s wife. (Oddly–or not–the defense never called Rove as a witness to confirm Libby’s claim that he had given Rove the same account of his Russert conversation that he had provided the FBI and grand jury.) Why could Libby, Zeidenberg asked rhetorically, recount specifics of this discussion but couldn’t “recall one out of nine conversations that he himself had about Mr. Wilson’s wife because it is a trivial detail?” There is a pattern, Zeidenberg added: Libby remembers the conversations he had with the government witnesses but never “the piece about Mr. Wilson’s wife.”

Libby, he argued, could even “remember with specificity what he didn’t talk about” the week before the leak. When Libby appeared before the grand jury, he testified that in the days after Joe Wilson published a July 6, 2003, op-ed article–in which Wilson revealed that he had gone to Niger for the CIA to check if Iraq had been uranium-shopping there and reported back the charge was highly unlikely–he and Cheney talked about Wilson’s mission. But Libby maintained that Cheney and he had not discussed the wife’s CIA position until after the leak appeared in the Novak column. Zeidenberg reminded the jurors that Cheney had written a series of questions on a copy of the Wilson op-ed, including one asking whether Wilson’s wife had sent him on a junket? “Ask yourself: the vice president has those questions,” Zeidenberg said, “who is he going to discuss them with? Is he pondering these things on his own? Or discussing them with his chief of staff?” And is there nothing suspicious, he added, that Libby told the grand jury that he and Cheney in the week before the leak discussed all of Cheney’s questions about the Wilson trip except the one about Wilson’s wife?

Get a FREE PDF copy of our 150th anniversary issue.

The case has pitted Libby (and his claimed recollections) against several reporters (and their claimed recollections). And Libby’s lawyers tried to knock down the testimony from Cooper, Miller and Russert. But Zeidenberg emphasized the core issue: could Libby have completely forgotten about her CIA connection and then learned it “anew.” Addressing the jurors, Zeidenberg said, “Forget for the moment about the testimony of those nine conversations…it’s simply not credible to believe that he would have forgotten this information about Wilson’s wife from June 11 to July 11…..The vice president’s office [at this time] is in the hot seat…They’re asked the question over and over: why did Mr. Wilson say he was sent [on his Niger trip] by the vice president….Mr. Libby thinks he has an answer: the wife….And he wants you to believe…that he so completely forgets the information about Mr. Wilson’s wife that when Russert tells him about it…it rings no bell?…It’s just not credible.”

Zeidenberg’s summation of the case was straightforward and compact. He poked at Libby’s hard-to-accept position: I knew, I forgot, then I knew again but forgot that I had forgotten. He explained there was a motive for Libby to lie to the FBI and the grand jury. It was a coherent tale about a fellow who tried to fib his way out of a tough spot. Perjury cases can be difficult because the prosecution has to prove the defendant’s intention and state of knowledge. Special counsel Patrick Fitzgerald and Zeidenberg argued a hard case well.

“Maybe I was drunk when I made my opening,” Ted Wells said, as he began his closing statement. He was referring to Zeidenberg’s characterization of his opening presentation: “Sure sounded like I said a lot of things I could not deliver on.” Wells claimed he had not promised to put on “a whole case of evidence” about a White House conspiracy to sacrifice Libby for Rove. “I promised I would show you a note,” he said. And Wells pointed to a note written by Cheney in October 2003–after the White House had declared (erroneously) that Rove had not been involved in the Valerie Wilson leak–that said, “Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder.”

Why is this so significant? According to Wells, the note–written by Cheney in response to Libby’s request that the White House also clear him of any wrongdoing in the leak case–is evidence Libby is innocent. Only an innocent man, Wells contended, would ask the White House to absolve him publicly and then–when rebuked by chief of staff Andrew Card and press secretary Scott McClellan–would beseech the vice president. Wells insisted that Libby had been hung out to dry by a White House eager to protect Rove.

But this was not a strong argument. After Cheney wrote that note, McClellan did clear Libby. And given that the White House had declared that Rove had not participated in the leak–even though Rove had been Robert Novak’s second source–the fact that Libby wanted similar treatment does not prove his guilt or innocence. Sometimes guilty people want to be declared innocent.

Wells moved to another line of defense. He told the juror the case was simple: it was about two conversations. He meant Libby’s phone call with Russert and a conversation Libby had with Matt Cooper. And, Wells added, this is all “he said/she said.” He revisited questions about Cooper’s and Russert’s powers of recall that he raised earlier in the trial. But Wells was also being sly. The case is not merely about whose recollections are more accurate: the reporters or Libby. Wells was trying to distract the jurors from the nine conversations Zeidenberg had reviewed. A case based on two conversations–where there are no notes or third-party witnesses–is “madness,” Wells proclaimed, adding, “there’s a craziness to this case.”

The defense team’s closer had an air of disorganization. But that was the point. Wells and co-counsel Bill Jeffress threw whatever they could at the jury. That Russert has a memory problem and a vendetta against Libby–and that Russert actually may have known about Wilson’s wife prior to his conversation with Libby. That Libby talked to eleven reporters and did not volunteer information to any of them about Valerie Wilson. That only Judy Miller said he leaked to her–and, Wells added, she cannot be believed. That Libby was too busy protecting the United States from terrorists to recall what had happened. That Libby would not have concocted such a cockamamie cover story that positioned Russert (whom Libby barely knew) as an alibi. That Rove and former Deputy Secretary of State Richard Armitage were the real leakers. That Libby was not at all worried about losing his job. That every participant in the case has forgotten one fact or another. That Valerie Wilson and her CIA connection was not important to Libby because, Wells said, “nobody cared at the office of the vice president.” That Libby had no reason to fear any investigation because he had not known that Valerie Wilson was a clandestine CIA employee.

The defense was not linear. There was no narrative. There were many assertions and questions. The closest the defense came to a competing explanation of what happened was its tale of the Libby sellout. Noting that the White House had said that Rove had not leaked, Wells declared, “Rove lied….Rove did talk to Novak.” And he put up a slide for the jury that showed photographs of Rove and Libby and carried the bottom-line explanation: “Save Rove/Sacrifice Libby.” By complaining about this in October 2003, Scooter Libby, Wells reiterated, had demonstrated he was innocent of any wrongdoing in the leak case. (Wells was operating under the assumption that leakers never lie.) And Libby’s lead lawyer slammed the Bush crew for not initially standing by his man: “That’s not a team I’d like to be part of. The sure didn’t treat [Libby] like he was part of the team.”

Over and over, Wells and Jeffress did what defense layers routinely do: drill into the jurors that the government has the obligation to show beyond a reasonable doubt that Libby lied deliberately. The prosecution must present “powerful” evidence, Wells said repeatedly, and the jurors have to base their deliberations upon the presumption of Libby’s innocence. Wells told the jurors, “There was memory problems with every witness” and he recalled that Grenier, a prosecution witness, had testified that his recollection of a conversation with Libby had “a fair amount of vagueness attached to it.” Jeffress asked, “Which witness came in here and didn’t get something wrong?”

Wells finished his case by returning to the sacrifice quasi-narrative, asking the jurors not to treat Libby as he was mistreated by the White House: “[If] someone [in the jury room] starts to say, ‘He was a Republican, he worked for Cheney, let’s do him,’ help that person….Don’t sacrifice Scooter Libby for how you may feel about the war in Iraq or how you may feel about the Bush administration. Don’t sacrifice Scooter Libby.”

His finale was emotional. Scooter Libby is “a good person,” Wells proclaimed, noting that Libby, during the trial, had been under Wells’ care and protection. “I give him to you,” he told the jurors. “Give him back to me. Just give him back.” Wells voice broke; he choked back a sob. He sat down.

Then it was Fitzgerald’s turn. After three years of working on this case, he, as is customary for prosecutors in a criminal case, would have the last word. “Madness,” he exclaimed. “Madness. Outrageous….The government brought a case about two phone calls.” He was mocking Wells. This was not a case of he-said/she-said, he explained; it was a case of he-said/he-said/he-said/she-said/he-said/he-said/he-said/she-said/he-said and he-said. “Is this the world’s greatest coincidence?” he asked, contending that there could not be nine conversations with everyone remembering the wrong thing. And forget about Russert, he said. If Russert had been “run over by a bus and gone to the great news desk in the sky,” the prosecution’s case would stand: Libby learned about Wilson from Cheney and others yet claimed he had not.

Valerie Wilson and her CIA affiliation was no trivial matter for Libby and Cheney, Fitzgerald insisted. For Libby and Cheney, Fitzgerald said, Valerie Wilson “wasn’t a person…she was an argument…a fact to use against Joe Wilson.” He pointed out that there is physical evidence. According to the notes of Libby’s CIA briefer, Libby told the briefer about Wilson and his wife a full month before Novak’s column–and Libby did so during a briefing that covered heavy-duty national security issues, such as terrorist plots and the war in Iraq. This document, Fitzgerald said, “is a fingerprint of the defendant’s brain.”

Fitzgerald called the jury’s attention to other documents that showed Libby and Cheney were nearly obsessed with the Wilson matter. He demonstrated that Cheney himself had helped create a set of talking points in early July about the Wilson imbroglio that began, “It is not clear who authorized Joe Wilson’s 2002 trip to Niger.” This showed, Fitzgerald argued, that the boss was concerned with the origins of Wilson’s trip. (Cheney and Libby believed the media accounts made it appear that Cheney had directly dispatched Wilson, though Wilson had only been sent by the CIA in response to a question Cheney had put to his intelligence briefer.) Fitzgerald recounted how prosecution witnesses had testified that when Libby talked about Wilson’s wife he did so in an unusual manner, as if Libby knew the subject was sensitive.

Fitzgerald came to the rescue of Judith Miller, whom he had sent to jail for 85 days before she agreed to cooperate with his investigation. The defense had had easy work in undermining her credibility–especially because she had forgotten in her first grand jury appearance to recall an entire meeting with Libby. But Fitzgerald walked the jurors through key portions of a memo on the Wilson trip that was sent to Libby on June 9, 2003. He then showed the jury portions of Miller’s grand jury testimony in which she noted that Libby had shared these same specifics with her during a July 8 meeting at the St. Regis Hotel. This exercise was a twofer for Fitzgerald. He demonstrated that Miller could be a reliable witness and that Libby had been quite interested in and able to recall details about the Wilson matter. It seemed Libby did have a good memory on this topic.

Fitzgerald chugged along. He undercut the defense team’s contention that Cooper’s notes back up Libby’s claim that he only shared scuttlebutt with Cooper. Fitzgerald scored points in rebutting the defense attorney’s attacks on Russert. And he took on Wells’ charge that the prosecution had throughout the trial attempted “to put a cloud over” Cheney. “There is a cloud on the vice president,” Fitzgerald replied, explaining that Cheney had written notes indicating he was interested in the Valerie Wilson connection and that Cheney had sent Libby to the meeting with Judy Miller where Libby (according to Miller) told her that Wilson’s wife worked at the CIA. “And that cloud remains,” Fitzgerald declared, “because this defendant obstructed justice….That cloud was there. It was not something we put there.” Cheney and Libby, Fitzgerald noted, could have held in July 2003 a press conference to reveal information they believed would undermine Joseph Wilson’s attack on the White House. Instead, they went with a leak to Miller. But why would Libby rely on a Russert-told-me cover story that could not withstand close scrutiny? “The sad truth is that sometimes when people lie it looks dumb when they get caught,” Fitzgerald said.

The prosecutor brushed aside the argument that Libby merely failed to remember what he had known and discussed about Valerie Wilson. Use your common sense, Fitzgerald asked the jury. Wells had earlier said that prosecuting Libby for not accurately recalling in October 2003 details of conversations he had in June and July 2003 was akin to asking a college student, who had spent a summer on a beach, to remember in the fall the specifics of a conversation he or she had the previous semester. That’s nonsense, Fitzgerald retorted, noting that memories are dependent on “uniqueness, importance, and anger.” Valerie Wilson’s CIA connection was certainly unique, he maintained, and the vice president’s office believed the Wilson trip was a significant topic. And Libby, according to the testimony of several prosecution witnesses, was angry about Wilson’s claim that the White House and the vice president had manipulated the prewar intelligence. “When you think it’s important, when you’re focused on it, when you’re angry about it–those are the things you remember,” the prosecutor said. And, Fitzgerald added, Libby’s CIA briefer had testified that he told Libby and Cheney that the disclosure of a clandestine CIA officer could lead to the harassment, torture or death of others. Even a 21-year-old, Fitzgerald said, would consider that important.

Winding up, Fitzgerald aimed at the entire Bush crew. “There’s a cloud over the White House as to what happened” in the leak affair, he told the jury. There were questions as to whether the law was broken when Valerie Wilson’s CIA cover was blown and “what role the defendant played…what role the vice president played.” Looking straight at the jury, Fitzgerald asked, “Don’t you think the FBI and the grand jury is entitled to straight answers.” Instead, he said, Libby made up a story and obstructed justice. Echoing Wells’ last lines, Fitzgerald declared of Libby, “He stole the truth from the judicial system. Give truth back.” With that, Fitzgerald was done.

After weeks, each side had presented the expected arguments. The prosecution marshaled a set of concrete facts that appeared compelling and that supported a narrow narrative. The defense picked at each witness, raised a host of other matters, suggested alternative theories (and conspiracy theories) without proving any, cited reporters to whom Libby had not leaked, and claimed that Libby had testified accurately to the grand jury and the FBI and that if he had not he had merely committed good-faith memory slips.

Fitzgerald offered a solid case. Wells offered several possibilities for any juror looking for a peg for a reasonable-doubt argument. Now twelve jurors will have to answer the question: who was sacrificed–Scooter Libby or the truth?

******

DON”T FORGET ABOUT HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR, the best-selling book by David Corn and Michael Isikoff. Click here for information on the book. The New York Times calls Hubris “the most comprehensive account of the White House’s political machinations” and “fascinating reading.” The Washington Post says, “There have been many books about the Iraq war….This one, however, pulls together with unusually shocking clarity the multiple failures of process and statecraft.” Tom Brokaw notes Hubris “is a bold and provocative book that will quickly become an explosive part of the national debate on how we got involved in Iraq.” Hendrik Hertzberg, senior editor of The New Yorker notes, “The selling of Bush’s Iraq debacle is one of the most important–and appalling–stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it.” For highlights from Hubris, click here.

David Corn David Corn is Mother Jones' Washington bureau chief. Until 2007, he was Washington editor of The Nation.
He has written for the Washington Post, New York Times, Los Angeles Times, Philadelphia Inquirer, Boston Globe, Newsday, Harper's, The New Republic, Mother Jones, Washington Monthly, LA Weekly, the Village Voice, Slate, Salon, TomPaine.com, Alternet, and many other publications.
He is the co-author (with Michael Isikoff) of Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War (Crown, 2006).
His book, The Lies of George W. Bush: Mastering the Politics of Deception (Crown, 2003) was a New York Times bestseller. The Los Angeles Times said, "David Corn's The Lies of George W. Bush is as hard-hitting an attack as has been leveled against the current president. The Washington Post called it "a fierce polemic...a serious case....[that] ought to be in voters' minds when they cast their ballots. A painstaking indictment."
His first novel, Deep Background, a political thriller, was published by St. Martin's Press in 1999. The Washington Post said it is "brimming with gusto....As clean and steely as an icy Pinot Grigio....[An] exceptional thriller." The Los Angeles Times called it "a slaughterhouse scorcher of a book you don't want to put down" and named it one of the best novels of the year. The New York Times said, "You can either read now or wait to see the movie....Crowded with fictional twists and revelations." The Chicago Tribune noted, "This dark, impressive political thriller...is a top-notch piece of fiction, thoughtful and compelling." PBS anchor Jim Lehrer observed that Deep Background is "a Washington novel with everything. It's a page-turning thriller from first word to last...that brings some of the worst parts of Washington vividly alive."
Corn was a contributor to Unusual Suspects, an anthology of mystery and crime fiction (Vintage/Black Lizard, 1996). His short story "My Murder" was nominated for a 1997 Edgar Allan Poe Award by the Mystery Writers of America. The story was republished in The Year's 25 Finest Crime and Mystery Stories (Carroll & Graf, 1997).
He is the author of the biography Blond Ghost: Ted Shackley and the CIA's Crusades (Simon & Schuster, 1994). The Washington Monthly called Blond Ghost "an amazing compendium of CIA fact and lore." The Washington Post noted that this biography "deserves a space on that small shelf of worthwhile books about the agency." The New York Times termed it "a scorchingly critical account of an enigmatic figure who for two decades ran some of the agency's most important, and most controversial, covert operations."
Corn has long been a commentator on television and radio. He is a regular panelist on the weekly television show, Eye On Washington. He has appeared on The O'Reilly Factor, Hannity and Colmes, On the Record with Greta Van Susteren, Crossfire, The Capital Gang, Fox News Sunday, Washington Week in Review, The McLaughlin Group, Hardball, C-SPAN's Washington Journal, and many other shows. He is a regular on NPR's The Diane Rehm Show and To The Point and has contributed commentary to NPR, BBC Radio, and CBC Radio. He has been a guest on scores of call-in radio programs.
Corn is a Phi Beta Kappa graduate of Brown University.